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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Lepper,
Present: Duffly, Cypher, & Cohen, JJ.
The cases were tried before James P. Donohue, J., and
a motion for a new trial, filed on
Alan D. Campbell for the defendant.
Annette C. Benedetto, Assistant Attorney General, for the Commonwealth.
DUFFLY, J.
The failure to erect metal storage structures
for twenty-three customers, after taking a hefty deposit from each customer and
promising to commence construction by a specific date, resulted in the
defendant's conviction by a jury on twenty-three indictments of larceny by
false pretenses, G. L. c. 266, § 30, and four indictments of
operating as a home contractor without a certificate of registration,
G. L. c. 142A, § 19. The trial judge adjudicated the defendant a
common and notorious thief under G. L. c. 266, § 40, and
sentenced him to ten to fifteen years in prison on the underlying larceny
convictions. A one-year sentence on the G. L. c. 142A, § 19,
convictions was to be served concurrently.
The defendant appeals from the judgments and from the denial of his motion for
a new trial. His primary claims are that: (1) eleven of the larceny
indictments and three of the indictments under G. L. c. 142A,
§ 19, lacked sufficient evidence to convict him; (2) the trial judge erred
in giving a joint venture instruction; (3) the question whether the defendant
was a common and notorious thief should have been the subject of a separate
indictment for the jury to decide; (4) the defendant did not receive effective
assistance from his trial counsel; and (5) the prosecutor engaged in
improper closing argument. We affirm.
I. Background. We sketch the facts the jury could have found. From November, 1996,
until November, 1997, the defendant owned Laredo Building Systems, a company
that built and installed large metal storage sheds and barns. Prospective
customers learned of the defendant's business through advertisements in local
publications directing them to call a toll-free "800" telephone
number where they would leave information in response to a recorded message.
Their calls were returned within a few days, either by the defendant or,
beginning in August, 1997, by his associate Charles Hill, who was hired by the
defendant to sell the structures on a commission basis.[1]
A meeting was then scheduled with the customer where, typically, a contract was
signed setting forth a start date for construction. The contract required
payment of a deposit of one- third the total cost of building the structure,
with another one-third to be paid upon delivery of the materials to the site,
and the final one-third to be paid upon completion of the work.
Beginning in February, 1997, the defendant made misrepresentations to numerous
prospective customers intending to induce them to part with their funds, which
he succeeded in doing. Each interaction had unique aspects, but patterns
emerge: the contracts set forth a specific start date for construction that
could not have been met, and false assurances were given customers that work
would commence at or near the contract date and that their structure would be
completed two weeks after that.
In the case of the twenty-three customers whose transactions with the defendant
formed the bases of the indictments against him, construction did not commence
by the agreed-upon start date and, in most instances, did not commence at all.
Despite numerous telephone calls to the defendant or Hill inquiring about the
status of the project, none of the twenty-three customers ever received a
refund of their deposits. The defense, presented largely through testimony of
the defendant's wife, was that the defendant was an inept businessman who did
not intend to defraud his customers.
II. Discussion. We discuss the defendant's nonfrivolous claims in the order
that best avoids repetition of the evidence, providing additional factual
detail within our discussion of the individual claims.
"The [claims] not specifically discussed
have either been subsumed in the discussion of other points or are so devoid of
merit as not to warrant attention." Commonwealth v. Edgerly,
1. Sufficiency of the evidence. The defendant
argues that the evidence as to some but not all of the larceny indictments and
G. L. c. 142A indictments was insufficient to convict and, thus, that
the trial judge erred in denying his motion for a required finding of not
guilty on those indictments. We review the denial to determine "whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Commonwealth v. Latimore, 378
a. Larceny by false pretenses. "To constitute the crime of larceny by
false pretenses . . . it must appear that [1] there was a false
statement of fact known or believed by the defendant to be false [2] made with
the intent that the person to whom it was made should rely upon its truth and
[3] that such person relied upon it as true and [4] parted with personal
property as a result of such reliance." Commonwealth v. Iannello, 344
The defendant claims that the evidence was insufficient to support convictions
involving eleven of the twenty-three victims, several of whom, he insists,
spoke only with Hill and thus could not have formed a basis for convicting him
absent evidence that he and Hill were joint venturers. He also argues that
evidence of Hill's intent to defraud the victims was lacking and, thus, that
there could be no joint venture.
Indictments involving Lamprey, Roussey, and Black. With respect to three of the
victims (customers Daniel Lamprey, Donald Roussey, and Kyle Black), the
evidence was sufficient to convict the defendant based either on his own false
statements to those individuals or on false statements he caused Hill to make.
The defendant and Hill had met in 1995 when both were employed at the same
automobile dealership. After Hill moved to
Hill and the defendant together met with Donald Lamprey in mid-August, 1997,
but Lamprey spoke only with the defendant at that meeting. Lamprey wanted to
see a structure that was built by the defendant before signing an agreement. The
defendant suggested that he look at a partially constructed building in
Sturbridge but told Lamprey not to communicate directly with the owners of that
building. He told Lamprey that he "was putting up steel buildings all over
the east coast and as far as out to
Donald Roussey first spoke with the defendant in June, 1997. Later, Hill
brought Roussey a contract that set forth an
Hill met alone with Kyle Black on
Taken in the light most favorable to the Commonwealth, the evidence was enough
to satisfy any rational trier of fact beyond a reasonable doubt that each
element of the crime was established. The evidence warranted the jury finding
that the defendant, since February, 1997, had engaged in schemes to defraud
individual customers and then had employed Hill in August, 1997, to assist him
in those endeavors. The defendant caused Hill to tell customers, including
Black and Roussey, that the buildings they had ordered would be started and
thereafter completed in time to meet their needs. These statements by Hill were
false.[2]
From this evidence, a fact finder could reasonably infer that the defendant
knew Hill's statements to Roussey and Black were false and that he intended the
false statements by Hill, as well as his own false statements to Lamprey, to
induce those individuals to sign contracts and pay deposits that would be
delivered to him, and that Lamprey, Roussey, and Black were each so induced.
See and compare Commonwealth v. Kenneally, 10 Mass. App. Ct. 162, 165, 168-170
(1980), S.C., 383 Mass. 269, cert. denied, 454 U.S. 849 (1981) (evidence
sufficient to establish the defendant's guilt of larceny by false pretenses,
where the defendant employed a salesman who sold policies of insurance to
various individuals and obtained from them checks for insurance premiums which
he delivered to the defendant who retained all or a portion of the checks and
then failed to submit applications for the policies or altered the applications
by reducing the premium amounts). See also Commonwealth v. Kiernan, 348
Indictments involving Cardinal, O'Keefe, Howard, Chase, Upton, and Mayo. As to
six other victims, Brian Cardinal, Richard O'Keefe, Henry Howard, George Chase,
Gerald Upton, and Nancy Mayo, the evidence was also sufficient to support
convictions as a joint venturer with Hill (who himself had formed the intent to
defraud by mid-September, 1997, at the latest).
When Hill began working on his own, he received from the defendant the names of
people who had called in response to the ads. Hill then contacted these people
and arranged to meet with them. With some of these victims, he entered into
contracts for the construction of buildings using information received from the
defendant as to the cost of the structures and the start dates to be included
in the contracts.
By September, customers were calling Hill to complain about lack of progress on
their structures. By at least mid-September of 1997, it could be inferred that
Hill knew the structures were not being built and that promises to new
customers that structures would be built in September or soon afterward could
not be fulfilled within any reasonable time frame. On
The jury could have found a joint venture to defraud on the basis of this
evidence, from which it could be inferred that at least by mid-September, 1997,
Hill had become a knowing accomplice with the defendant in a scheme to defraud
potential customers of their deposits, using the approach modeled for him by
the defendant. The evidence permits the reasonable inference that Hill and the
defendant both knew that Hill's statements regarding the starting dates of
construction were false statements of fact; that such statements were made in
order to induce customers to part with funds; that in reliance on the false
statements, the customers did part with funds which were delivered to the
defendant, and that Hill received a share of the funds. "This has been the
paradigm of a number of cases resulting in conviction." Commonwealth v.
Camelio,
Indictment involving Snide. We reject the contention that there was no evidence
of false statements made to William Snide, who did not testify, or of any
direct proof that Snide's structure was never put up. Hill testified that he
received a lead from the defendant and in response went to see Snide in October
of 1997, entered into a contract with Snide that specified a start date, and
received a deposit from Snide which he then turned over to the defendant. Hill
further testified that Snide was never given a refund and that no structure was
ever built on his property. Additionally, evidence of Hill's misrepresentations
to others very near the time he met with Snide bears on the Snide transaction
where that evidence showed a comprehensive scheme to defraud.
Indictment involving O'Connor. We reject the defendant's claim that the
conviction respecting Maura O'Connor cannot stand because, in partially
performing his contract with her, he expended funds that exceeded the amounts
paid to him by O'Connor.[4] The essential elements of the offense of
larceny by false pretenses were satisfied upon evidence that the defendant made
statements, false at the time, that induced O'Connor to part with her property
($17,000) which the defendant retained at least for a time. Larceny by false
pretenses does not require a specific intent to permanently deprive a victim of
property, and neither the intent to repay nor actual repayment is a defense.
b. Violation of G. L. c. 142A. The defendant next claims that the evidence
was insufficient to establish his guilt with respect to the three convictions
under G. L. c. 142A, § 19, for operating as an unlicensed home
improvement contractor. Section 19 provides for a fine not exceeding two
thousand dollars or imprisonment not exceeding two years against "[a]ny
contractor or subcontractor who shall knowingly, willfully, or negligently
operate without obtaining a certificate or registration as required by this
chapter . . . ." The defendant does not deny that he
had no certificate; rather, he contends that the evidence failed to establish
that he was engaged in residential contracting which G. L. c. 142A
purports to regulate.
We reject the defendant's argument that, because G. L. c. 142A,
§ 1, defines "residential contracting" to include the
"construction of an addition to any pre-existing owner occupied
building . . . or to structures which are adjacent to such
residence or building," the Commonwealth was required to prove beyond a
reasonable doubt that the defendant had knowledge that each structure was to be
constructed adjacent to an owner-occupied building.
Ample evidence established that the structures the defendant promised to build
and install were to be adjacent to owner-occupied buildings, at least as the
term "adjacent" is commonly understood. Cf. Simas v. House of
Cabinets, Inc., 53 Mass. App. Ct. 131, 136-137 (2001) (rejecting defendant
contractor's narrow interpretation of the term "pre-existing
owner-occupied building," as defined in G. L. c. 142A,
§ 1). The Commonwealth was not required to establish beyond a reasonable
doubt that the defendant actually knew that the location of proposed structures
was adjacent to owner-occupied buildings. If that were the case, a contractor
could engage in residential contracting and avoid the registration requirement
by the mere expedient of meeting with potential customers away from the
customer's premises and then pleading ignorance as to where on the premises the
improvements were to be located.
2. Joint venture instructions. The defendant claims that the judge erred, both
by instructing the jury on joint venture and in his failure to instruct
correctly. There was a basis for the joint venture instruction because, as we
have discussed, supra, the evidence established both Hill's criminal intent to
commit the crime of larceny and that he and the defendant were operating in
concert.
The defendant further claims that the joint venture instruction in the judge's
final charge was erroneous because jurors were not told that they had to find
that Hill intended to commit the underlying crime. This claim was raised for
the first time in the defendant's motion for a new trial; hence, we review the
claim to determine if any error in the joint venture instructions created a
substantial risk of a miscarriage of justice. See Commonwealth v. Scala, 380
Mass. 500, 510 (1980); Commonwealth v. Graham, 431 Mass. 282, 286-287, cert.
denied, 531 U.S. 1020 (2000).
The trial judge instructed that "in order for [Hill] to be a joint venturer,
he must actively participate in [the] particular offense, and that active
participation must be done with the specific intent to commit the underlying
crime." In his final charge, he further instructed, "[T]here must be
some actual active, intentional participation, aid or assistance by [the
defendant] in connection with any of the acts performed by Hill. In addition to
that, the Commonwealth must prove that [the defendant] shared with Hill the
mental state required for the particular crime." These instructions gave
the jury the guidance they needed to correctly determine the issue of joint
venture. See Commonwealth v. Charles, 428 Mass. 672, 682 n.7 (1999) (jurors
were properly instructed that to find that the defendant acted as a joint
venturer, they must conclude that he "entered into an agreement or meeting
of the minds with one other coventurer").
3. Adjudication as a common and notorious thief. Based on the twenty-three
larceny convictions, the judge (with the assent of the defendant's trial counsel)
adjudicated the defendant a "common and notorious thief" pursuant to
G. L. c. 266, § 40.[5] The judge sentenced the defendant
to ten to fifteen years in prison, stating that this was "on all of the
larceny indictments."
Relying on Apprendi v.
The defendant makes no claim that the evidence was insufficient to convict him
of larceny with respect to at least twelve of the indictments, nor that any one
of the indictments was improper.[6] The twenty-three indictments charged
larceny by false pretenses from twenty-three separate individuals on different
dates. In order to convict, jurors were required to determine the facts with
respect to each indictment beyond a reasonable doubt. On each indictment, the
defendant could not have been "convicted of anything less than a jury's
finding of each element beyond a reasonable doubt." Commonwealth v. Beale,
434
Moreover, the defendant's sentencing alone avoids any Apprendi violation. Each
larceny conviction carried a possible maximum five-year prison sentence, thus
exposing him to consecutive sentences of up to one hundred and fifteen years.
See G. L. c. 266, § 30. By comparison, an adjudication and
consolidated sentencing under the common and notorious thief statute exposed
the defendant to a maximum prison sentence of only twenty years. That is unlike
the situation in Apprendi where, upon the judge's finding by a mere
preponderance of the evidence that the baseline hate crime offenses had been
committed with a biased purpose toward a specific group, the defendant faced an
enhanced maximum aggregate sentence up to ten years longer than the maximum
twenty-year consecutive sentences he could have received on the baseline
offenses alone. Apprendi, supra at 470. Here, the defendant was not exposed to
an enhanced sentence as a consequence of being adjudicated a common and notorious
thief by the trial judge. "[N]o Apprendi violation occurs as long as the
defendant receives a sentence below the default statutory maximum applicable to
the [baseline offense]."
4. Ineffective assistance of trial counsel. The defendant claims he received
ineffective assistance from his trial counsel who he says (1) failed to object
to the joint venture instruction; (2) did not move to strike the testimony of
Howard, a Connecticut resident and one of the victims; (3) should not have
requested that the defendant be adjudicated a common and notorious thief; and
(4) failed to object to the prosecutor's closing. Because we have determined
that there was no error in the instructions, that the court did not lack
jurisdiction over the charge involving Howard, and that the defendant's
conviction under G. L. c. 266, § 40, was proper, counsel's
objections on these points would have been unavailing and "[t]he defendant
could not have been harmed by counsel's supposed inaction in those
respects." Commonwealth v. Beauchamp,
We also find no merit in the defendant's further claims that his trial counsel
was ineffective because his arguments were not persuasive and that he failed to
present exculpatory evidence or organize other evidence in such a way that
jurors could understand its true import.[8] "[T]he basic trouble
from the defense standpoint was weaknesses in the facts rather than any
inadequacy of counsel." Commonwealth v. Satterfield, 373
5. Prosecutor's closing remarks. The defendant claims that several of the
prosecutor's remarks in his closing argument were improper and require
reversal.[9] We address briefly only those claims supported in the
defendant's brief by citation to relevant authority. See Mass.R.A.P. 16(a)(4),
as amended, 367 Mass. 921 (1975); Commonwealth v. Montez,
The prosecutor's single reference to one customer as "pregnant"
(after defense counsel had already referred to her in that same manner) was an
attempt to distinguish her from the many other witnesses who appeared before
the jury. It was not done to appeal to jurors' emotions or to elicit improper
sympathy from them. Commonwealth v. Santiago, 425 Mass. 491 (1997), relied on
by the defendant, is inapposite. There, reversible error occurred when, during
open and closing arguments, the prosecutor stated twelve times that the victim
was seventeen and pregnant when she was murdered the day before her birthday.
The prosecutor referred twice to "the type of person" the defendant
was. One reference to the number of indictments against the defendant did not
amount to an improper attack on the defendant's character. Rather, the
prosecutor was merely highlighting the fact that twenty-three separate
indictments had been joined for trial pursuant to Mass.R.Crim.P. 9(a)(1), 378
The prosecutor's argument -- that a letter sent by the defendant to a victim
was intended "to intimidate and bully and cajole [the victim] into being
afraid of him, and that's the type of person [the defendant] is" -- would
better have been left unsaid. On the whole, however, we do not think the
reference tainted the jury's verdict.
Other remarks by the prosecutor in his closing argument to which the defendant
now objects include isolated comments possibly suggesting (1) a shifting of the
burden of proof to the defendant; (2) that there were additional, uncharged
incidents of larceny by false pretenses; and (3) that jurors' duty was to
convict the defendant.
The prosecutor ought not have suggested that the defendant had any burden at
trial, even "an entirely different burden, a lesser burden," than
that of the Commonwealth.[10] Cf. Commonwealth v. Habarak, 402 Mass.
105, 111 (1988) ("As a general rule, . . . rhetorical
questions should not be used in closing argument where they could be perceived
by the jury as shifting the Commonwealth's burden of proof to the
defendant"). We do not think the isolated comment went so far as to
suggest that the burden shifted to the defendant. Even if it had done so, the
error was cured by the judge's specific instruction that "[t]he
presumption of innocence . . . means that a defendant in a
criminal case is under no obligation to prove his innocence. . . .
The burden never shifts to the defendant to prove his innocence." See
Commonwealth v. Francis, 391 Mass. 369, 373-74 (1984) (statements by the judge
insulated the jury from improper remarks by the Commonwealth).
The prosecutor's statement that evidence showed that "there were a couple"
of buildings that had been built by the defendant, when it could be inferred
from the evidence that there were more, was at most an overstatement of a
collateral issue that could not have misled the jury, particularly where the
judge emphasized in his charge that arguments of counsel were not to be
considered as evidence and that jurors were to decide the facts based
exclusively on the evidence.
The defendant did not object at trial, nor did he raise in his motion for a new
trial the further claim that the prosecutor improperly suggested to the jury
that it was their duty to convict.[11] We review this claim to determine
whether the alleged error created a substantial risk of a miscarriage of
justice. Commonwealth v. Graham, 431 Mass. at 286-287. Under that standard,
"[w]e analyze the remarks in 'light of the "entire argument, as well
as in light of the judge's instruction to the jury and the evidence at
trial."'" Commonwealth v. Delaney, 425 Mass. 587, 599 (1997), cert.
denied, 522 U.S. 1058 (1998) (citations omitted).
This impermissible statement was coupled with a correct statement of the law
(that the jury were to apply the law to the facts they had heard) and was
reinforced by the judge's instructions that the jury were to apply the law
provided by the judge to the facts of the case. Hence, the statement did not
create a substantial risk of a miscarriage of justice. See Commonwealth v.
Lyons, 426 Mass. 466, 471-472 (1998) (no substantial risk of a miscarriage of
justice when the jury were told to consider all the evidence in a rational
manner after being told they had a duty to convict).
In sum, these remarks, even assuming they were improperly suggestive, were
cured by the judge's proper instruction regarding the Commonwealth's burden of
proof (including an instruction that the defendant has no burden of proving his
innocence) and an instruction that closing remarks are not to be considered as
evidence.
6. Other claims. The defendant claims for the first time on appeal that the
trial judge abused his discretion in denying his request for new counsel. The
defendant twice informed the trial judge that he and his trial counsel
disagreed over trial strategy and that he no longer wanted him as his attorney.
"A motion to discharge counsel, when made on the eve of trial, or on the
day on which trial is scheduled to begin, 'is a matter left to the sound
discretion of the trial judge.'" Commonwealth v. Tuitt, 393
Other claims raised by the defendant provide no basis for reversal.
Judgments affirmed.
Order denying the motion for
new trial affirmed.
FOOTNOTES:
[1] Hill testified pursuant to a cooperation
agreement with the Commonwealth. In exchange for his testimony against the
defendant and upon his payment of restitution, Hill was to receive a sentence
of probation.
[2] Testimony by witnesses regarding Hill's false
representations to them as to when installation or construction would commence
would have been admissible "not for [their] truth but rather to show that
the statement[s were] made." Commonwealth v. Sullivan, 410
[3] The defendant
further claims that
We also reject the contention that jurisdiction and proper venue in
Worcester Superior Court were lacking to try the defendant there on the Howard
indictment because the crime did not occur in
[4] O'Connor contracted with the defendant for a
small feed shelter for horses and a large dog kennel, paying a total $17,000
deposit for which she ultimately received only a foundation and roof for the
smaller structure; the defendant claims to have expended $17,771 installing
that foundation and roof.
[5] General Laws
c. 266, § 40, provides: "Whoever . . . is
convicted at the same sitting of the court, as principal or accessory before
the fact, of three distinct larcenies, shall be adjudged a common and notorious
thief, and shall be punished by imprisonment in the state prison for not more
than twenty years or in jail for not more than two and one half years."
[6] Cf. Commonwealth v.
North, 52 Mass. App. Ct. 603, 606 (2001), in which the defendant -- who was
convicted on twenty-one indictments for larceny by false pretenses from four
clients -- claimed that because the monies were taken pursuant to a single
larcenous scheme, a conviction of more than four larcenies
inflicted multiple punishments for the same offense in violation of the double
jeopardy clause of the Fifth Amendment to the United States Constitution. We
rejected the claim, noting that "the defendant committed a multitude of
separate acts on different dates by differing artifices," and we went on
to observe that "[i]t is not reasonable to believe that, in enacting [the
larceny statute], the Legislature intended that a person who steals [a large
sum of money by] separate takings is subject to no greater maximum penalty than
is one who steals [a small amount from a victim] on one occasion." Ibid.
We distinguished such a case from the circumstances present in Commonwealth v.
Donovan, 395 Mass. 20, 27-29 (1985), where although there were several
different victims, the defendant committed a single act when he superimposed a
phony bank night deposit box over a real one. Ibid.
[7] We note that in Commonwealth v. Crocker, 384
Mass. 353, 355 (1982), decided prior to Apprendi, the court held that there was
no constitutional compulsion to notify the defendant in the indictment that he
might be sentenced under G. L. c. 266, § 40. "The
defendant . . . is simply being given one consolidated sentence
for the three larceny offenses of which he has been duly convicted." Ibid.
[8] Responding to this
claim, the motion judge, who was also the trial judge and had the opportunity
to observe defense counsel in action, found as follows:
"Defense counsel made a forceful argument on [the defendant's] motion
for a required finding of not guilty regarding whether false statements were
made. [The defendant's] trial counsel presented to the jury in an organized
fashion [the defendant's] check registers, bank statements, and other data, as
well as witness testimony that [the defendant] had paid bills to suppliers, had
legitimate business expenses and had built some buildings. Defense counsel's
closing argument focused on the elements of the crime and asserted that [the
defendant] was merely an inexperienced businessman with good intentions who was
experiencing difficulties in his personal life. With one hundred and twenty-one
exhibits on their hands, the jurors were armed with sufficient information on
which to reach a fair result."
[9] These claims, to which the defendant had
registered no objection at trial, were resurrected by the judge's treatment of
them in connection with the defendant's motion for a new trial. See
Commonwealth v. Hallet, 427 Mass. 552, 555 (1998) ("any issue argued in
the appeal from the denial of the defendant's motion for a new trial that the
motion judge fully addressed on its merits must be considered as if properly
preserved for direct appeal"). As to these issues, "[t]he standard of
review . . . is one of prejudicial
error . . . ." Commonwealth v. Mejia, 407
[10] The prosecutor stated in closing: "Ladies
and gentlemen, it is our burden to prove each and every indictment beyond a
reasonable doubt, and we accept that burden, and I suggest to you the evidence
has proven that. The defendant, who is under an entirely different burden,
lesser burden, now stands before you and says, you know, I built buildings. I
built buildings. That has nothing to do with these 23 victims."
[11] The prosecutor told the jury: "When you
apply the law that the judge gives you to the facts that you heard, you will
know that he is guilty of each indictment before you, and it will be, I suggest
to you, your duty to bring back guilty verdicts against him."